Should Brazil’s Marco Civil internet law be left alone?

Brazil’s Marco Civil da Internet is an ambitious law that governs the use of the internet in the country but it’s a law that had a difficult creation and one that remains under constant scrutiny.

It spent many years in gestation before it was finally passed into law by President Dilma Rousseff in March 2014.

In a different twist, the Ministry of Justice eschewed the typical consultation and debate process for the internet law. Instead it opened the consultation to the public via a website where regular people, civil rights groups, businesses, and politicians could all submit comments.

Given the nature of the law and what it was trying to regulate, an online crowdsourced consultation made sense, at least on paper.

Previous attempts to introduce online legislation in Brazil had been messy. Proposals for cybercrime laws were hotly debated over provisions that would allow for greater surveillance of Brazilian internet users and disproportionately severe punishments for online piracy. This new process encouraged greater openness.

These open online consultations formed the basis of the Marco Civil da Internet that the Ministry of Justice would then draft into law.

However, it was not without issues. In one examination [Portuguese] of the 636 comments submitted to the website, it was discovered that two-thirds of them had been submitted by just two individuals. At the same time, large corporations avoided using the platform and its transparent model, instead opting for private letters to the ministry that outlined their concerns – the old-fashioned way of doing things.

Nevertheless, Marco Civil was created and passed with three main components: it restricts the amount of data a company can retain on its users; it requires a judicial review of takedown requests for illegal content; and it enshrines the principles of net neutrality.

Despite these components and the relatively solid support the law has received from digital and civil rights groups (including Tim Berners-Lee), it has been opposed by many politicians. Recently resigned Congressman Eduardo Cunha, a long-time rival of Rousseff’s with ties to the telecommunications industry, stood in firm opposition.

More than two years on since Marco Civil’s passing, the law remains highly criticised. Some proponents feel it doesn’t go far enough and is flawed. On the other hand, opponents want to dismantle the law with legislation that they find more favourable.

Marco Civil has shown its fair share of faults along the way too. In December 2015, a judge instituted a ban on Facebook-owned messaging service WhatsApp for failing to cooperate in a criminal investigation and hand over data. The ruling was based on a clause in Marco Civil, according to the judge, but the ruling was soon overturned by another judge, citing that Marco Civil has no such clause for a ban. This left question marks over just what exactly Marco Civil could be used for in cases like these.

Earlier this year, Rousseff’s government commenced work on a regulatory decree that was published in May and was supposed to offer guidance on how the law should be interpreted. It protected some of the pillars of the law mentioned above but failed to ban zero ratings and preserved some exceptions to the net neutrality rules.

Among its many objectives, Marco Civil was intended to allay censorship fears online in Brazil. It was only in late June of this year that we saw the first case of the law being used to prevent content being taken down. A Pentecostal church in Sao Paolo had attempted to have a video removed from YouTube that showed one of its “gay cure” classes but a judge ruled otherwise.

All the while Brazil continues to battle its way through a tumultuous political landscape. In June a group of 21 NGOs and other organisations banded together to sign a letter in support of Marco Civil. They fear that a new government will make unnecessary or unwanted changes to the decree and ultimately the law.

Dennys Antonialli, executive director of Brazilian think tank Internet Lab, tells IDG Connect that some of the proposals being made undermine the protections that Marco Civil has built. He claims cybercrime, cyberbullying and child pornography are being used as reasons for increasing surveillance and warrantless data collection.

Parliament debated some of these proposals earlier this year. In an editorial, the daily newspaper Folha de S.Paulo [paywall] labelled the talks an attack on Marco Civil and compared the proposals to the internet control seen in China and Iran.

One particularly vague proposal stated that sites would have to remove content that insulted the “honour” of politicians and public figures. Critics called it a means of dressing up what is essentially censorship of any disapproval.

“With regard to such proposals, I argue that Marco Civil already establishes a good system for fighting cybercrime while still protecting users’ privacy,” says Antonialli.

“Marco Civil requires that ISPs retain connection logs for one year; for application companies, the mandatory period of retention is six months. If there is sufficient legal basis, a judge can authorise access to such logs which will then be important to identify the user. Having judicial oversight is crucial to avoid abuses and guarantee due process.”

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